January 10, 2013
This guest post was written by Mila Isakovska. Mila holds an LLM in International Public Law and Human Rights from the Riga Graduate School of Law and is currently working as Legal System Monitor in the OSCE Mission in Kosovo.
The news of the Grand Chamber judgment in the extraordinary rendition case of El Masri v. the former Yugoslav Republic of Macedonia has echoed widely in the human rights sphere. Starting from the European countries and extending worldwide, particularly to the CIA’s homeland, this decision sends a clear message of warning to governments’ declaratory pledge for human rights protection of every human being. With over 1,245 flights operated by the CIA in European airspace between the end of 2001 and 2005, it seems that it was only a matter of time before the European Court of Human Rights (ECtHR) would have an opportunity to extensively deliberate on the issue of extraordinary rendition. The El Masri case also provided for an opportunity to discuss the right to truth, in the face of potential exceptions such as state secret matters.
Facts of the case
Mr. Khaled El-Masri, of German nationality, entered Macedonia by bus on 31 December 2003. He was immediately detained at the border and taken to a hotel in Skopje where he was kept for 23 days. During his stay at the hotel he was questioned by Macedonian agents about possible links with Al-Qaeda, on occasion even threatened with a gun. Eventually he was driven to Skopje airport and handed over to CIA agents. They performed on him the so called “capture shock” treatment by handcuffing him, blindfolding and undressing him. He was sodomised with an object, drugged, forcefully placed in a CIA aircraft, and finally flown out of Macedonia to Afghanistan. For the following four months he was detained in an interrogating facility called the Salt Pit in Afghanistan, where he was subjected to torture and repeated interrogation about his alleged involvement in terrorism. During his imprisonment in Afghanistan and Macedonia he was not allowed contact with his family, legal counsel or any relevant judicial organ. After the CIA agents realized that he was not the person they were looking for, he was abandoned near the Albanian border, not knowing if he was going to be released or killed. Finally the Albanian authorities sent him back to Germany.
Reasoning of the Court
The Court found that Macedonia has breached articles 3 (prohibition of torture), 5 (right to liberty and security), 8 (right to respect for private and family life) and 13 (right to an effective remedy) with regard to captivating Mr. El Masri and handing him over to the CIA agents.
Regarding the claim under the prohibition of torture, the Court concluded that the respondent State is responsible for the inhuman and degrading treatment of the applicant while detained in the hotel, for his torture at the Skopje airport and for exposing him to the risk of further treatment contrary to Article 3 of the Convention by giving him under custody of the US authorities.
The Court accepted the described facts and events by the applicant as established “beyond reasonable doubt”, mainly because they were corroborated with additional evidence such as expert opinions and international, independent reports and investigation (the Marty report, the Fava report and other submissions by relevant international organizations). On the other hand, the Government did not offer an alternative sequence of events or explanations corroborated by any evidence. Hence, violations were found regarding both the procedural and substantive aspect of the person’s right to be protected from torture or other forms of ill-treatment. The lack of an effective official investigation demonstrated that, in spite of alarming the state prosecution, the case was not submitted further, nor investigated in details. In parallel, the international investigating teams were able to acquire important information about the course of events (the aircraft that transferred the victim to Afghanistan, carrying only one passenger and other evidence).
The lack of effective investigation raises one very important issue which surely will be further analysed by legal scholars: the right to truth, meaning that the inadequate investigation in the present case deprived the applicant of being informed of what had happened, including of getting an accurate account of the suffering he had allegedly endured and the role of those responsible for his alleged ordeal. The concept of “State secrets” has often been invoked to obstruct the search for the truth not only by the Macedonian government, but also by other European governments involved in renditions or even in having detention centres operated by the CIA on their territories.
The right to truth has already caused different opinions reflecting in the concurring opinions of Judges Tulkens, Spielmann, Sicilianos and Keller in one group and Judges Casadevall and Lopez Guerra in another. The first group claims that the right to truth should not only be included and stressed through effective investigation within Article 3, but should also be included as a separate and more elaborate element through Article 13, the right to effective remedy. On the other hand, Judges Casadevall and Lopez Guerra claim that introducing the right to the truth as a concept important for the general public within Article 3 is redundant, since the victim is the one that should know the truth of the matter.
In addition to the procedural breaches of the rights, the substantive aspect demonstrates that Article 3 was breached by the Macedonian authorities through the active involvement of their agents and the awareness of the location where the applicant was being sent, without taking any preventive measures or guarantees.
The violation of article 5 was found in the fact that Mr. El-Masri was held in unacknowledged detention in Skopje without the safeguards that should be provided by a judicial authority, which constitutes a particularly grave violation of his right to liberty and security. Failing to comply with their positive obligations, the Macedonian authorities actively facilitated his subsequent detention in Afghanistan by handing him over to the CIA, despite the fact that they were aware of the circumstances in which such prisoners, subjected to enforced disappearance were held.
The Court also found that Macedonia violated Khaled El-Masri’s right to private and family life, and his right to an effective domestic remedy. His complaints under Articles 3, 5 and 8 of the Convention were brought to the attention of the public prosecutor and this prosecution failed to conduct any effective criminal investigation. This means that it was not carried out in accordance with Article 13 with regard to the applicant’s complaints under Articles 3 and 5 of the Convention. As the Government pointed out in their submissions, the ineffectiveness of the criminal investigation undermined the effectiveness of any other remedy, including a civil action for damages.
As a consequence of the judgment, the legal team representing Mr. El Masri has the intention of asking for full scale apology and acknowledgment that this operation was indeed carried out. In addition to paying the compensation ordered by the Court, according to them the country should commit to create an international commission of inquiry capable of leading to the identification and punishment of the Macedonian officials who participated in his extraordinary rendition.
The government’s representative to the ECtHR stated that it will take time before they study the judgment in details, however they will move towards completing their initial responsibilities from the judgment, meaning payment of the just satisfaction amount. The representative also stated that the statement given by the former Minister of Interior Affairs was the only direct evidence towards the responsibility of the government. However, the many indirect evidences obtained through international inquiries and the investigation by the German authorities is impossible to overlook even if this statement was not submitted. Among those were aviation logs, flight logs, scientific testing of the applicant’s hair follicles, conducted pursuant to a German criminal investigation, confirming that he had spent time in a South Asian country and had been deprived of food for an extended period of time, geological records that confirm the applicant’s recollection, sketches that the applicant drew of the layout of the Afghan prison, etc.
According to the media, the human rights experts in the country are insisting on Macedonia learning a valuable lesson in dealing with such matters. The former judge at the ECtHR, Margarita Tsatsa Nikolovska stated that the authorities should consider looking into the existent legislation regarding possible obligations resulting as consequences from this case.
The prohibition of torture as a concept, but also as a rule has acquired the ius cogens status and it is undoubtedly one of the most widespread international human rights rules, holding states responsible even outside their territory. Needless to say, equally important is the rule of personal safety that each country, especially a democratic one, should provide for any person within its borders. Hence, even the circumstances, such as the fight against terrorism cannot exempt states from providing such protection and respecting the basic safeguards.
It is clear that the type of situation present in El-Masri is by definition a case of “extraordinary rendition”, in fact, “an extra-judicial transfer of persons from one jurisdiction or State to another, for the purposes of detention and interrogation outside the normal legal system, where there is a real risk of torture or cruel, inhuman or degrading treatment”.
The El-Masri judgment is exceptionally important for the purpose of sending a message to the European states to refrain from such activities, either engaging directly or in helping other countries in such intentions. The protection of the human rights safeguards must prevail in such cases, regardless of the difficulties in fighting organized crime, or even terrorism. Otherwise, the ones designated to protect rule of law and to protect the people are the ones breaking the rules under the hood of state secret issues, using state mechanisms as their tools. The judgment is additionally important to be followed into its further effects and in particularly regarding Mr. El-Masri’s additional case against the USA, which is pending at the Inter-American Commission on Human Rights.
 See the Fava report on the alleged use of European countries by the CIA for the transportation and illegal detention of prisoners, para. 42. Available at http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//NONSGML+REPORT+A6-2007-0020+0+DOC+PDF+V0//EN
 see Babar Ahmad and Others v. the United Kingdom, para. 113